Don Preister believes the Bellevue City Council violated state statute last week when it failed to select a new representative for Ward I or call for a special election.
The former state senator, who is now the president of the council, challenged the city attorney's interpretation of the rules governing filling a vacancy on the council. He argued the city attorney gave “half an opinion” by ignoring a statute that further describes the process the city should follow.
“We cannot selectively pick statute to follow or not follow unless state statute specifically grants it, and state statute does not specifically grant it,” Preister said. “We need to follow statute all the way.”
City Attorney Patrick Sullivan, however, said he would bet his reputation on the accuracy of his interpretation. He essentially accused Preister and at-large Councilwoman Carol Blood of playing politics.
“I have no dog in this fight whatsoever,” Sullivan said. “The council did not get half of an opinion. It got a full opinion. Half of the opinion isn't liked by some of the people on the council, Mr. Preister being one of them.”
The disagreement revolves around two statutes that explain how city council vacancies are to be filled. The fight came to a head May 13 when Mayor Rita Sanders again nominated businessman Mike Hall to represent Ward I after his appointment failed at the April 8 council meeting.
One statute applies to cities of the first class, which Sullivan says is the only one relevant to Bellevue's vacancy. Another statute describes vacancies in any city or village, which Priester says should apply except insofar as it might conflict with the more specific statute for cities of the first class.
“When you read statute, you have to read it together,” Preister said. “When you look at statute, you can't just read one section of statute by itself.”
Sullivan said Preister is wrong because, in Sullivan's opinion, Sect. 32-568(3) and Sect. 32-569 describe two different ways to fill a vacancy, not one general way with specific differences for cities of different sizes and forms of governance.
“This has been studied to an extreme,” Sullivan said. “They are two completely separate processes.”
More specifically, the conflict appears to hinge on four words in 569: “except as otherwise provided.” Sullivan's view holds that phrase to mean 568 governs the decision because it provides an alternative process, while Preister's view holds that phrase to mean 568 provides details but 569's provisions otherwise govern the general process of filling vacancies.
Preister said 568 lacks the steps of how to fill the vacancy through a mayoral appointment. He said that's because 569 outlines the rest of the process for filling a vacancy.
“You've got to go to the next section,” Prestier said. “That's where you have to go to find the procedures. It isn't spelled out in 568. You have to go to 569.”
Furthermore, Preister said the city followed multiple provisions of 569 by providing notice of the vacancy, having the mayor make a nomination and holding a vote of the City Council on the nominee.
“We have followed this section of statute to the 'T' exactly the way we should have except tonight when we get to this point,” Preister said. “And tonight, we're shifting gears and we're saying we can resubmit the same candidate who has been rejected. State statute specifically, as I've read it, says it's different.”
Sullivan said 569 recognizes there are two different processes for a mayoral appointment because “except as otherwise provided” refers to Sect. 32-568(3) as an alternative to Sect. 32-569(1), the portion of 569 dealing with such an appointment.
“I didn't write this stuff; I am just interpreting it,” Sullivan said. “I am so certain of this that I will stake my house on this opinion. I have no doubt in my mind how this reads and that is the proper way that this is supposed to proceed.”
He acknowledged the dual processes create “an odd gap” in the legislation that allows a city to remain locked in a stalemate.
“I get stuff from the Legislature all the time that leaves us in this predicament,” Sullivan said. “That's why we have people here to interpret it.”
Blood said she and Preister consulted with an attorney in State Sen. Health Mello's office, and that attorney said their interpretation was correct. Mello is a prominent Democrat who currently holds Preister's former seat representing South Omaha in the Legislature.
“I would love to talk with that attorney in the Legislature because I think he's completely wrong,” Sullivan said.
However, Sullivan made it clear he would not consult with the Nebraska Secretary of State's Office to confirm his interpretation. Councilman Paul Cook said he spoke at length with an attorney in the office who supported the way the city was planning to proceed with a vote.
“He sure gave me the impression that what we're doing is OK,” Cook said. “He was comfortable with what we were doing.”
Preister said he needed to follow his conscience by not participating in a vote not permitted by state statute. Both he and Blood abstained from voting again on Hall's appointment, which failed to pass on a 2-1 decision in favor.
“I feel that if I were to vote on this issue, and it's my preference on if I would vote on this issue, I would be voting against state statute,” Blood said. “I won't do that.”
Blood said she would have voted on names of other candidates if they were brought forward.
Councilwoman Kathy Saniuk said during the debate over a special selection that she would favor a compromise of considering candidates other than Hall instead of the delay and expense of conducting an election.
The process debate is separate from whether the city should hold a special election or appoint someone selected by the mayor. Preister, Blood and Councilman Steve Knutson have twice held up Hall's appointment, which has denied Sanders enough votes for her to provide the fourth vote needed to confirm her preferred candidate.
Hall was one of nine Ward I residents who applied for the seat that was vacated March 31 by Scott Houghtaling, who resigned to take a job in Ohio. The appointment is for a term that runs through January 2017.
Preister said the next step is up to the mayor, but he said he favors a special election or reaching a consensus on a nominee before it's brought forward for a vote.
“When we all agree, then you move it forward to the public,” Preister said. “When you don't have agreement, when you know it's split, why would you do all of this? We didn't create it. We couldn't nominate. That's the mayor's process.”